Updated Leave Laws Reflect a Changing Environment for Employers Navigating a Post-Pandemic Economy in 2023

In California, 2023 brings new requirements to allow employees flexibility in who they might take time off to care for, guaranteed bereavement leave, and increased state wage replacement benefits. These changes show a continuing trend requiring employers to recognize and make accommodations for the family and care obligations of their workforce.

Simultaneously, the requirement to provide supplemental COVID leave is expiring, just as the ‘tripledemic’ resulting from the convergence of the flu, COVID and RSV is upon us during these winter months. This landscape leaves employers exploring how to balance the need for staffing with policies that allow employees an appropriate amount of time off to handle these matters.

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Below is a brief overview of changes to California leave laws in 2023.

No. 1: Expansion of CFRA and Paid Sick Leave to Include a “Designated Person”

Prior to November 2022, the California Family Rights Act, a statute that provides unpaid leave rights to most employees in California, included leave to care for “family members,” which were set forth in a list that was more expansive than the federal Family and Medical Leave Act, in that it included “registered domestic partners,” “grandparents,” and “siblings.”

Under AB 1041, that list was expanded to include a “designated person,” who could be a blood relative, or someone “whose association with the employee is the equivalent of a family relationship.”

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Similarly, the bill amended California’s paid sick leave law to also add “designated person” to the list of “family members” that an employee can receive protected leave to care for.  In both instances, an employee can identify the “designated person” at the time they request the leave, and the employee is limited to one “designated person” per 12-month period.

No. 2: Institution of Guaranteed Bereavement Leave

While many employers offer bereavement leave (often paid) regardless of any requirement, such leave is now mandatory under AB 1949.  Specifically, a new section of the Fair Employment and Housing Act requires employers to provide five days of bereavement leave upon the death of a family member.

While the definition of “family member” is taken from the CFRA, the inclusion of the “designated person,” discussed above, does not appear to carry over.

An employee can take such leave within three months of the date of the death, and it does not need to be taken consecutively.  If an employer does not already have a paid bereavement leave policy, leave required under this statute does not need to be paid, however, an employee can use available vacation, personal leave or sick leave that is otherwise available to the employee.

The bereavement leave under this section is not capped, and would be available more than once in a year, if an employee experiences the unfortunate circumstance of losing more than one family member in a year.

No. 3: Increase to Wage Replacement Under Paid Family Leave Program

While not effective until 2025, California implemented another change to its Paid Family Leave program that signals a focus on hourly employees fully receiving the opportunity to take time off to care for loved ones.  California’s Paid Family Leave program provides wage replacement funded through an employee-side state payroll tax, and currently issues checks in the amount of 60% of an employee’s previous wages, with a 70% payment for low income workers.

Effective 2025, the percentages will increase to 70% for most workers, but workers making less than the threshold set by the statute (which will vary by quarter) will receive 90% of their previous wages.

No. 4: Expiration of California Supplemental COVID Leave

California required supplemental COVID leave three different times – in 2020, 2021 and 2022. Most recently, it passed AB 152, which extended the deadline for employees to use up to 80 hours of supplemental paid leave for qualifying reasons from September 30, 2022 until December 31, 2022. The law did not grant any leave above the 80 hours previously authorized, but allows employees to continue to utilize leave balances, if not previously exhausted, through the end of the year.

Additionally, an employee who commences this supplemental leave prior to December 31, 2022 can continue the leave past that date if the qualifying reason continues (i.e., if the employee is in isolation due to being COVID-positive in the early days of January).

The expiration of this leave entitlement presents a new chapter for both employers and employees, as COVID continues to spread and public health orders continue to require individuals with COVID to isolate and not report to work for longer periods than the typical cold or flu (current public health orders require isolation for 10 days, unless a negative test result is obtained between days five and 10, for most workers). 

Employers will have to determine whether to provide a voluntary COVID leave program, require employees to use existing paid sick leave or vacation leave, or provide unpaid leave without issuing discipline or similar consequences. Additionally, employers will want to get ahead of and address challenges that may arise because some of their employees can work from home when in isolation, while others’ job duties may not be amenable to remote work.

As employers navigate the post-pandemic economy, they should keep the above statutory changes in mind, but should also devote time to understanding alternative options to allow employees to attend the illness and family obligations that undoubtedly arise for everyone, while simultaneously managing the needs of the business and ensuring operations are adequately staffed and deliverables are met.

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